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Child Exploitation Material


Stephen Preece

Offences concerning “child exploitation material” are contained within chapter XXV of the Criminal Code 1913 (WA), (The Code).

Pursuant to section 221A(1A) of The Code, a person who is charged with any of the offences in this chapter cannot use a defence the fact that they did not know the age of the child depicted, described or represented in the material or to which the charge relates.

Similarly, a person cannot assert a defence that they believed the child to be of or over the age of 16 years. Essentially this means that “ignorance in no excuse” when it comes to the age of the child in relation to these offences.



CHILD:

A “child” is defined as a person who is under the age of 16 years.

CHILD EXPLOITATION MATERIAL:

“Child exploitation material” is defined as:

  • “Child pornography”; or
  • Material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is or appears to be a “child”:
    • In an offensive or demeaning context; or
    • Being subjected to abuse, cruelty or torture (whether or not in a sexual context).

CHILD PORNOGRAPHY:

“Child pornography” is defined as “material” that, in a way likely to offend a reasonable person, describes, depicts or represents person, or part of a person, who is, or appear to be, a child:

  • Engaging in “sexual activity”; or
  • In a sexual context.

MATERIAL:

“Material” can be any picture, object, film, written or printed matter, data or other thing. It can also be any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else.

This definition covers all forms of depicting and storing pictures, films, written material etc. For example, a computer disk drive can fall within the definition of “material” if it contains a data file which is an image file. Even if the disk drive does not contain a program which can open the file, the mere fact the data file is there places it within the definition of “material” as the picture can be reproduced from the disk drive if the relevant program is used.

PICTURE:

“Picture” is defined as including an image whether or not it is a computer generated image.

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